Apple Wins Initial Ruling (Officially)

[Candyfingered]

Exactly, we all might have speculated how the information got out and whether the information was confidential or not. The fact the source of the information came from a slide presentation which happen to have Apple Confidential written all over it, say that whomever published it had to know what they were doing.

The fact the Judge also narrowly defined his ruling to the specifics of Apple claim will make it very hard to over turn.

Oh BTW, the argument of whether they are a real journalist of not, well think about this, most recognized media confirm their information from more then one source and they also call the person or company to let them know what they will publish and try and get a comment on it. Also, like what just happen with the iTune Phone, you all know Moto show the press and share information about it, and did you see anything form the mainstream press, no since they honored Moto wishes to hold off on the information since they are now not ready to share it.

^ most intelligent post in this thread.

 

[gwangung]

It's only the first round.

I expect some interesting contradictions in the future, or the possibility that the case against one (or more) of the websites will be completely tossed in one of the coming rounds.

Quite possibly. For example, I can see the case against the other sites tossed on the basis that the information on the Shuffle was not a trade secret (something that's clearly not the case with Asteroid).

I find it interesting that no mention was made of the shield law and its applicability. That's where THINK SECRET had a stronger case--clearly, First Amendment law does not protect trade secret violation (there's far too much case law that's established that principle), but the collision of the shield law and trade secret law has much less jurisprudence.

 

[Maestro64]

You are commenting on the whole case. My objection was to one specific statement, including the phrase "feeding the public's insatiable desire for information" that seems to me to be too broad and needlessly negative.

I bet the judge made this state due to what the Web sites use as a defense for publishing the information. So the judge was says just because people want to know does not give the right to the information.

 

[Sayhey]

You assume there will be coming rounds. TS hasn't said they'll appeal.

This is not ThinkSecret's case. There will be an appeal.

Court Crushes Online Journalists' Rights


EFF Asking California Apellate Court to Intervene


Santa Clara - Today Santa Clara County Superior Court Judge James Kleinberg ruled that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to attorneys from Apple Computer, Inc. The court rejected a request for an order to protect the confidentiality of these sources and other unpublished materials.


The Electronic Frontier Foundation (EFF), along with co-counsel Thomas Moore III and Richard Wiebe, is representing the journalist, and will be asking the California Appellate Court to intervene.


"We're disappointed that the trial court ignored the Supreme Court's requirement that seeking a journalist's confidential sources be a 'last resort' in civil discovery," said EFF Staff Attorney Kurt Opsahl. "Instead, the court asserts a wholesale exception to the journalist's privilege when the information is alleged to be a trade secret."


"This is a broad-brush ruling that threatens journalists of all stripes," said EFF Legal Director Cindy Cohn.


This landmark case was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. But the court did not restrict its ruling to online journalists, instead deciding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.


Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information, but these have not yet been issued and were not ruled on today.


Ruling [PDF]; case summary [PDF]; more about Apple v. Does.


Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org


Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Posted at 12:43 PM

emphasis added


EFF

 

[Candyfingered]

This is not ThinkSecret's case. There will be an appeal.


emphasis added


EFF

Well hopefully the Appeals court sides with the superior court. The sites are protecting criminals pure and simple. They have no right to protect their criminal souces.

 

[Maestro64]

This is not ThinkSecret's case. There will be an appeal.


emphasis added

Court Crushes Online Journalists' Rights


EFF Asking California Apellate Court to Intervene


Santa Clara - Today Santa Clara County Superior Court Judge James Kleinberg ruled that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to attorneys from Apple Computer, Inc. The court rejected a request for an order to protect the confidentiality of these sources and other unpublished materials.


EFF

What makes this an interesting case is Apple see this as a thief of Company Secrets and the EFF sees it as on Online Journalist right to publish what every they want.

This is a classic defense, if you know you can not win on the opponents ground, change the playing field and make a new game.

 

[Candyfingered]

What makes this an interesting case is Apple see this as a thief of Company Secrets and the EFF sees it as on Online Journalist right to publish thing.

This is a classic defense, if you know you can not win on the opponents ground, change the playing field and make a new game.

Judge agreed with Apple. And the way he worded it made it sound like he'd have ruled the same way regardless if it were a newspaper or a website. And he's right. Journalists and sudo-journalists pry too much in the interests of "free speech". By modern journalism standards they would have revealed the Manhattan project if they'd known about it during WW2.

 

[jragosta]

This is s stupid fight.

Unless Think Secret illegally (bribed employees or subcontractors, or somehow coerced information out of people by illegal means), this is nothing more than simple reporting, and is protected free speech. Apple has to prove damages in order to trump the free speech card.

This judge is way out of his league.

You're just plain wrong.

Under the Uniform Trade Secrets Act, it's illegal to publish information that's known to be a trade secret - even if you obtained it legally.

Since Apple sent them several letters telling them that the information was a trade secret, they can't argue that they didn't know. Bottom line is that they lose.

Their last argument was that they were journalists. The judge's ruling was that it doesn't matter if they're journalists or not. The UTSA applies just as much to journalists as it does to you or me.

 

[jragosta]

Stealing information can be just as devistating to company. Maybe Asteroid isn't an overly innovative product but the person who disclosed the information may have access to information of a completely new kind of product. If the information is released prematurely, competetors would have more time to create a rival product and may get it to market before Apple could. And who's to say that this person will not or hasn't sold trade secrets directly to a competetor. Apple is just protecting their intellectual property and must think this is a pretty big leak.

Stealing information is MORE devastating.

If someone steals a car from Apple, they lose $20 K - and will be reimbursed by insurance. The car can be replaced.

If someone steals and publicizes confidential information, it can destroy Apple's position in the market place - causing potentially millions of dollars in damage.

 

[bit density]

Not unconstitutional...

The judge is stupid. Stealing a car deprives the owner of its use. Stealing information does not.

Whoever disclosed the information may have broken a civil contract between himself and Apple. That contract does not bind third parties. If there is a trade secret law which binds third parties, that law violates the US constitution.

First stealing trade secrets does deprive the owner of it's use. That is what is unique about trade secrets...

Second, this ruling did NOT bind third parties. There was no damages, or prevention of publication. The only thing that has been asked for is the source. And it would appear that under trade secrets law in CA that there is no protecting of sources. If Apple Insider promised to protect the source, they may well have been making promises that they could not legally make.

This would be a more interesting case if the information was not really a trade secret. Like information regarding some sort of criminal activity, and whether or not Apple could keep that information secret, and/or go after the source.

 

[Candyfingered]

First stealing trade secrets does deprive the owner of it's use. That is what is unique about trade secrets...

Second, this ruling did NOT bind third parties. There was no damages, or prevention of publication. The only thing that has been asked for is the source. And it would appear that under trade secrets law in CA that there is no protecting of sources. If Apple Insider promised to protect the source, they may well have been making promises that they could not legally make.

This would be a more interesting case if the information was not really a trade secret. Like information regarding some sort of criminal activity, and whether or not Apple could keep that information secret, and/or go after the source.

I believe such information is protected by whistleblower laws. But is obviously not applicable here unless Asteriod is some sort of toxic software.

 

[bit density]

You're just plain wrong.

Under the Uniform Trade Secrets Act, it's illegal to publish information that's known to be a trade secret - even if you obtained it legally.

Since Apple sent them several letters telling them that the information was a trade secret, they can't argue that they didn't know. Bottom line is that they lose.

Their last argument was that they were journalists. The judge's ruling was that it doesn't matter if they're journalists or not. The UTSA applies just as much to journalists as it does to you or me.

Actually, you are wrong here. The question is can the sources be protected. You are not bound to a trade secret, unless the owner of the secret both tells you and binds you to that secret. So A tells B. B tells C. C is not bound by anything, and can do with it what they want. The crime is in B Tells....

They were not being tried for publishing the information, they are being sued to reveal their sources.

The sources are the ones responsible for breaking the trade secrets. The next question is, did the sites somehow illegally compel those secrets from the source. I think that is probably not likely true.

 

[Candyfingered]

Actually, you are wrong here. The question is can the sources be protected. You are not bound to a trade secret, unless the owner of the secret both tells you and binds you to that secret. So A tells B. B tells C. C is not bound by anything, and can do with it what they want. The crime is in B Tells....

They were not being tried for publishing the information, they are being sued to reveal their sources.

The sources are the ones responsible for breaking the trade secrets. The next question is, did the sites somehow illegally compel those secrets from the source. I think that is probably not likely true.

True or untrue it is also irrelevant. They are protecting parties that have comitted a crime which is not a position they can legally take.

 

[bit density]

True or untrue it is also irrelevant. They are protecting parties that have comitted a crime which is not a position they can legally take.

Not as clear here. There are ample examples of the government attempting to use national security and secrets acts to protect illegal activity from being disclosed, or if disclosed to get at the source through journalists. There are also similar cases attempted through non-disclosure and trade secret agreements to get at sources through journalists.

The key is NOT that they are journalist and can publish whatever and protect whoever. But the nature of the information tends to uncover illegal activity or information that is of serious public interest. In those cases, even with early agreement by judges that the sources have to be produced, on appeal, the nature of the information has tended to fall under the spirit of first amendment/fifth estate rights and obligations...

But in this case where it is purely commercial information, I think that the sites will have a tough time getting the protections extended, and that they will be forced to reveal the sources or suffer legal consequences for not doing so.

 

[gwangung]

Actually, you are wrong here. The question is can the sources be protected. You are not bound to a trade secret, unless the owner of the secret both tells you and binds you to that secret. So A tells B. B tells C. C is not bound by anything, and can do with it what they want. The crime is in B Tells....

They were not being tried for publishing the information, they are being sued to reveal their sources.

The sources are the ones responsible for breaking the trade secrets. The next question is, did the sites somehow illegally compel those secrets from the source. I think that is probably not likely true.

Back up a second. The wording in the law allows it to be applied to third parties, if they knew or had a reason to believe that the material they were publishing was a trade secret. Distributing materiel that is known to be a trade secret is a violation of trade secret law. (Hmmm. Ya think material with "APPLE CONFIDENTIAL--DO NOT DISTRIBUTE" would indicate a trade secret?).

An argument can be made that revelation of sources is the least restrictive punitive measure for violation of trade secret law. And that journalistic shield law does not protect a journalist whose actions are inherently actionable (i.e., illegal).

 

[Candyfingered]

Not as clear here. There are ample examples of the government attempting to use national security and secrets acts to protect illegal activity from being disclosed, or if disclosed to get at the source through journalists. There are also similar cases attempted through non-disclosure and trade secret agreements to get at sources through journalists.

The key is NOT that they are journalist and can publish whatever and protect whoever. But the nature of the information tends to uncover illegal activity or information that is of serious public interest. In those cases, even with early agreement by judges that the sources have to be produced, on appeal, the nature of the information has tended to fall under the spirit of first amendment/fifth estate rights and obligations...

But in this case where it is purely commercial information, I think that the sites will have a tough time getting the protections extended, and that they will be forced to reveal the sources or suffer legal consequences for not doing so.

You bring up good points and are dead on. The protections TS and the other sites are looking to envoke are designed to protect whistle blowers... and rightly so. However in this case Apple wasn't doing anything that can be construed as illegal and thus the sources deserve NO protection including from the websites.

 

[Sun Baked]

This one came in completely against PowerPage for Apple getting an inside look at their e-mail service provider NFox, don't know what happened to AppleInsider (Kasper Jade/Monish K. Bhatia) -- just mentioned as one of the original named defendants.

But the way the court is interpreting DVD vs. Bunner doesn't look good for
ThinkSecret. Though they are still fighting and can still get their case tossed completely, they've got an anti-SLAPP motion going right now -- those usually can end up being interesting.

The actual ruling signed by the judge (thanks Sayhey)...

20050311_apple_decision.pdf

 

[Maestro64]

Actually, you are wrong here. The question is can the sources be protected. You are not bound to a trade secret, unless the owner of the secret both tells you and binds you to that secret. So A tells B. B tells C. C is not bound by anything, and can do with it what they want. The crime is in B Tells....

They were not being tried for publishing the information, they are being sued to reveal their sources.

The sources are the ones responsible for breaking the trade secrets. The next question is, did the sites somehow illegally compel those secrets from the source. I think that is probably not likely true.

You know you can argue this all you want the Judge told you what the deal is, and EFF might want to make this a 1st amendment issue, and they can try but it is not,

BTW C is also responsible especial is they knew B was covered by and NDA. However, not if B was a stranger to C and they walked up to C on the street and gave C the information then maybe not, but if it has a warning on it, they have been legal put on notice and they are now liable for their actions.

 

[~loserman~]

What makes this an interesting case is Apple see this as a thief of Company Secrets and the EFF sees it as on Online Journalist right to publish what every they want.

This is a classic defense, if you know you can not win on the opponents ground, change the playing field and make a new game.

I disagree.
Lets keep our eyes on the ball here.

Think secret did not commit a crime.
The breakers of the NDA may or may not have committed a crime depending on whether or not the California law considers theft of a trade secret is a criminal act. For certain the breakers of the NDA at the least broke their contract and will be liable for damages.

This suit is about forcing TS to reveal it's sources not punitive or criminal damages against TS.
I thought I read somewhere that Apple suspects one of 25 of their own employee's as the leaker.

As to TS's defense of course it would be a 1st Amendment " freedom of the press" defense.

 

[Rower_CPU]

...
Think secret did not commit a crime.
...

That remains to be seen - Apple's claim of "tortious interference" seems to indicate they may have.

 

[gwangung]

I disagree.
Lets keep our eyes on the ball here.

Think secret did not commit a crime.

Hmm. That's debatable under trade secret law; you may be working under a mistaken assumption

The breakers of the NDA may or may not have committed a crime depending on whether or not the California law considers theft of a trade secret is a criminal act. For certain the breakers of the NDA at the least broke their contract and will be liable for damages.

This suit is about forcing TS to reveal it's sources not punitive or criminal damages against TS.
I thought I read somewhere that Apple suspects one of 25 of their own employee's as the leaker.

As to TS's defense of course it would be a 1st Amendment " freedom of the press" defense.

WHich, of course, is not a strong defense, as shield law is not a deritvative of the First Amendment....that's why separate shield laws were enacted.

Courts have long held that First Amendment does not extend to libel, copyright violations, defamtion of character and trade secret. The key point is trade secret vs. shield law, and not the First Amendment.

 

[Candyfingered]

I disagree.
Lets keep our eyes on the ball here.

Think secret did not commit a crime.
The breakers of the NDA may or may not have committed a crime depending on whether or not the California law considers theft of a trade secret is a criminal act. For certain the breakers of the NDA at the least broke their contract and will be liable for damages.

This suit is about forcing TS to reveal it's sources not punitive or criminal damages against TS.
I thought I read somewhere that Apple suspects one of 25 of their own employee's as the leaker.

As to TS's defense of course it would be a 1st Amendment " freedom of the press" defense.

Problem is the press does not have the freedom to protect violators of trade secrets unless they are whistle blowers. The First Amendment has it's limits just like anything else.

 

[DJMad]

Being of a nation that has had to endure 9/11, I really find your notion that keeping ones sources secret is important, complete nonsense. I realise the crime that has been committed is not of the same severity, but does that matter.

If you know someone has or is about to commit a crime, you should be made to divulge any information you have.

Being a student in Boston and interning in NYC I first hand saw the devastation of 9/11. In journalism you have always been able to protect your sources, and enjoy the freedom of speech. According to you it seems that any rumor should be illegal, and the journalist should always give their sources. But lets try an example with your rule. I am a redsox fan and I hear that we might be trading for a new player, should the person who wrote the story goto jail? Any speculation would then be illegal, really destroying the freedoms our nation was built on. By trading freedoms for security are we not just letting the people who did 9/11 win? This is just my two cents.

 

[bit density]

I disagree.
Lets keep our eyes on the ball here.

Think secret did not commit a crime.

They might have, and they still may.

The few crimes would be Obstruction (Failing to name sources in a reasonable and timely fashion), Conspiracy (Knowingly conspire to expose trade secrets), and Contempt (Failure to promptly follow a lawful order of the court).

 

[Sun Baked]

I disagree.
Lets keep our eyes on the ball here.

Think secret did not commit a crime.

Heck we don't even have any information of the ThinkSecret case yet.

We've been speculating on the ThinkSecret case based on what's happening with the AppleInside/PowerPage case -- which is fair (since this is a rumor site.)

But the way the wind is blowing, it doesn't look good for him at the moment.

---

However the ThinkSecret case is the most interesting one for us, because he's still taunting Apple's lawyers by continuing to publish info from his sources.